The World and Everything in It — December 7, 2020

MARY REICHARD, HOST: Good morning!

The Trump administration defends its request to exclude certain groups classified as illegal aliens from the census count.

NICK EICHER, HOST: That’s ahead on Legal Docket.

Also today, the Monday Moneybeat we’ll dig into the November jobs report and a new wave of lockdowns that aren’t as tight as you might think.

Plus the WORLD History Book. Today, the 80th anniversary of the most lopsided football game in NFL history.

REICHARD: It’s Monday, December 7th, Pearl Harbor Day. This is The World and Everything in It from listener-supported WORLD Radio. I’m Mary Reichard.

EICHER: And I’m Nick Eicher. Good morning!

REICHARD: Now news. Here’s Kent Covington.

KENT COVINGTON, NEWS ANCHOR: COVID-19 infections continue to rise » COVID-19 infections continue to surge across the country with no sign of slowing down anytime soon. 

White House Coronavirus Response Coordinator Dr. Deborah Birx told NBC’s Meet the Press… 

BIRX: There isn’t a state without increasing cases right now except Hawaii. And we have to listen to what we know works, which is masks, physically distancing, washing your hands, but not gathering. We cannot gather without masks.

For the first time, new cases topped 200,000 each of the last four days, including a record high of nearly 240,000 cases on Friday. That represented a sevenfold increase in just one month’s time. 

Health and Human Services Secretary Alex Azar told Fox News Sunday. 

AZAR: We’re seeing these surges in cases in the United States, but also in Germany, France, U.K., Spain. It’s about behavior and cold weather. 

Globally, nearly 700,000 people test positive each day. And with sparse testing in many countries, it’s likely that now more than a million people contract the virus every day. 

Hospitalizations and deaths are also up across most of the globe. 

UK prepares to administer first coronavirus vaccine shots to public » In the U.K. Sunday, refrigerated trucks hauled thousands of doses of the new coronavirus vaccine, made by Pfizer and BioNTech, to distribution centers.

Officials expect to have 800,000 doses ready to go inside special subarctic temperature freezers when the immunization program launches tomorrow. 

Hospital staff in the U.K. have been training for the vaccine rollout. Victoria Barke is among the officials overseeing the effort. She said it won’t be easy. The biggest challenge…

BARKE: I’d say it’s the scale that you have to deliver the vaccine at. We obviously deliver the flu vaccine every single year. But we’re now having to deliver at a much faster pace. We would usually deliver the flu vaccination every number of months. 

The U.K. was the first country to authorize the vaccine for emergency use. Large scale trials showed it to be about 95 percent effective. 

Slaoui: I “expect” FDA to approve vaccine, positive impact in Jan., Feb. » Meantime, in the United States, The FDA could greenlight the vaccine by the end of this week. 

Dr. Moncef Slaoui is chief adviser to the Trump administration’s Operation Warp Speed vaccine program. He told CBS’s Face the Nation…

SLAOUI: Based on the data that I know, I expect the FDA to make a positive decision, but of course, it’s their decision.

Members of an FDA panel will meet on Thursday to review Pfizer and BioNTech’s application for emergency use. One week later, they’ll review Moderna’s application for its vaccine. 

Slaoui said the vaccines could have a positive impact as soon as next month. 

SLAOUI: We may start to see some impact on the most susceptible people probably in the month of January and February. But on a population basis, for our lives to start getting back to normal, we’re talking about April or May.

A CDC panel has recommended that healthcare workers and nursing home residents be first in line for the vaccine. That could help to curb the growth of COVID-19 deaths beginning early next year. But a wider vaccine rollout is still months away. 

EU, UK engage in last-ditch post-Brexit trade talks » Negotiators have returned to the bargaining table for perhaps a final attempt to strike a trade deal between the U.K. and the European union. 

Britain left the EU back in January, but it remains a part of the bloc’s single market and customs union through Dec. 31st. 

If they can reach a deal by then, it would ensure that neither side slaps tariffs or quotas on the goods they trade with one another. 

But as of now, they’re nowhere near shaking hands. 

European Commission President Ursula von der Leyen…

LEYEN: Significant differences remain on the three critical issues: Level playing field, governance, and fisheries. Both sides underline that no agreement is feasible if these issues are not solved. 

Fisheries play an outsized role in the talks. The EU has demanded widespread access to U.K. fishing grounds that historically have been open to foreign trawlers. But in Britain, gaining control of the fishing grounds was a huge issue for many Brexiteers who pushed for the country to leave the EU.

Today is a critical day for trade talks. British Prime Minister Boris Johnson will decide tonight whether there’s even a point in continuing negotiations.

I’m Kent Covington.

Straight ahead: the Trump administration defends its census count plan at the Supreme Court.

Plus, notable moments in media history.

This is The World and Everything in It.

NICK EICHER, HOST: It’s Monday morning and we’re back for another week of The World and Everything in It. Today is the 7th of December, 2020. 

Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket. 

First, a quick update on the transgender funeral director case from last Supreme Court term.

EICHER: The justices decided by a 6-3 vote that Title VII of the Civil Rights Act of 1964 means employers cannot discriminate based on a new legal concept known as gender identity. 

The word “sex” in 1964 didn’t mean that, but using a literal analysis, the majority arrived at that conclusion anyway.

REICHARD: Well, last week, the funeral home owner who faced that sex discrimination case and lost at the Supreme Court agreed to settle for a quarter of a million dollars. The Detroit News reports that the employee’s estate will receive $130,000. The ACLU, which represented the fired employee, will receive the remaining $120,000. 

The employee, later known as Aimee Stephens, died in May.

EICHER: We’ll place a link to your Legal Docket podcast devoted to that landmark case in today’s transcript. Might be worth going back and reviewing the details of that case.

Now for oral arguments. 

Last week the Supreme Court heard arguments in Trump vs. New York. It’s the latest battle over who’s counted in the national Census. That in turn determines how many seats each state receives in the House of Representatives and how many Electoral College votes. And the data helps divvy up local governments’ share of tax dollars under federal programs.

In short, this is about power and money.

REICHARD: Brief history. Last year, the Trump administration asked to add a question to every single 2020 Census Form that is already on some of the forms. A simple question: Are you a citizen of the United States? To justify adding the question, Commerce Secretary Wilbur Ross stated that it was to better enforce the Voting Rights Act.

But in a contentious 5-4 ruling, Chief Justice John Roberts joined the liberal justices to eliminate the citizenship question on almost all forms.

The majority believed that the reason President Trump sought the answer to that question was strictly political, and that the stated justification was contrived.

EICHER: To arrive at that citizenship number another way, the president issued an executive order to collect it from administrative records—drivers license information, for example.

In July, President Trump announced that the government would not count for purposes of apportioning congressional seats people who are in the country unlawfully.

So he asked the Commerce Secretary for two sets of numbers: one, the total population per state, and two, the total population minus those living here illegally, “to the extent practicable.” That would be the number he’d use to allocate seats in the House.

And that’s what this lawsuit is about. Democrat-led states and local governments along with immigration advocacy groups sued.

It’s not a straight-up red-state, blue-state issue, though. 

If people here illegally go uncounted, then immigrant-heavy states stood to lose seats: blue California and red Texas. But states like blue Minnesota and red Alabama could gain seats that they might otherwise lose because of population shifts.

REICHARD: Regardless, Solicitor General of New York Barbara Underwood attacked the president’s approach to census taking:

UNDERWOOD: The framers wanted a system that could not easily be manipulated, so they decided to count just the persons living in each state. The policy here would for the first time in this nation’s history reject that choice. People who live in a state without lawful immigration status still live there. They are not invisible. And, like other residents, voting and non-voting, their presence requires attention from the government and the need for representatives to give that attention. That is the rationale for—one rationale for including them.

Therefore, she argued, the government should count anyone who resided here on April 1, 2020. “Inhabitant” means usual resident, and therefore includes people here illegally. Just a few categories of people ought not be counted, like foreign diplomats or tourists.

But the president’s lawyer, acting Solicitor General Jeffrey Wall, argued the president has discretion about who to count. A 1992 Supreme Court decision called Franklin says so. Wall also appealed to the wisdom of the founders.

WALL: The test isn’t just where you lay your head at night. It is, as Franklin says, where you have allegiance or an enduring tie. And there’s no coherent theory of political representation that says every illegal alien, no matter how little time they’ve been here or no matter that they are imminently facing removal, is a usual or settled resident. It’s the sovereign’s prerogative to define the political community, and the other side is left to say, look, this is just what the founders wanted. But they don’t have an explanation for why the founders would have wanted it, and that should give us pause because, whatever the founders were, they were not aimless people given to purposeless structures.

A lot of focus swirled around the meaning of the word “persons.” One law directs the President to “transmit to Congress a statement showing the whole number of persons in each state.” During the Constitutional convention debates, the framers called “persons” inhabitants and used that word in a draft. But the Committee of Style later cut it out.

Overshadowing it all? Deadlines. The Commerce Secretary must report to the President on December 31st, and then the President must submit his report to Congress the second week of January. Other deadlines also loom.

Justice Elena Kagan tried to pin Wall down on paperwork: how many people are we talking about excluding? She mentioned the 200,000 people about to be deported; millions in deportation proceedings but not detained.

KAGAN: Okay. So what I’m getting from you is we can get very easily to 4 or 5 million people who you have extensive administrative records on, and you’re saying, well, there’s a matching problem. So you’re 30 days out. It seems to me you either know whether you can do matching or you don’t know whether you can do matching. Why the uncertainty on this?

WALL: Because, until you actually compare the one set against the other set, you just don’t know how many hits you’ll get.

Underwood for the blue states pushed the court to wait a few weeks just to see how much work the Census Bureau can finish. Yet Justice Amy Coney Barrett saw folly in that:

BARRETT: But what if we say that he cannot categorically exclude all illegal aliens? He says, fine, I’m not going to do that. I’m going to count everyone who’s in an ICE detention facility, everyone who’s in removal proceedings, and maybe say all DACA recipients. But I agree, you know, I have reasons for thinking each of these don’t satisfy the inhabitancy requirement. Wouldn’t you just be back litigating those specific issues?

UNDERWOOD: Yes, I think we would, yes.

The court fast-tracked this argument to get to a resolution quickly, given the looming deadlines, not to mention the potential changes at the White House. With the great uncertainty about how much the Census Bureau can do in the remaining time, the justices may punt, and let the apportionment happen as the president wants, and leave it to post-apportionment litigation to sort it out later. We should know very soon.

Two more arguments I’ll cover, quickly. Both involve immigration law. 

One asks, what exactly is a crime of “moral turpitude”? A man from Mexico named Clemente Pereida came to the United States illegally 25 years ago. During that time, he’s worked and supported a wife and three children. Ten years ago, he tried to use a fake social security card to get a job. For that, he paid a $100 fine. But it also triggered the Department of Homeland Security to begin deportation proceedings, which he is trying to stop.

Immigration law says a noncitizen convicted of a crime involving “moral turpitude” has no authority to stop deportation. Problem is, the law isn’t clear whether Pereida’s offense falls under that heading. 

The state conviction record is ambiguous about it. 

Justice Stephen Breyer underscored the idea of ambiguity in the law favoring Pereida.

BREYER: Well, there is a virtue in simplicity in the law. So why isn’t the simple thing to do keeping the law uniform, simple, as much as it can be?

I think a majority of justices leaned that way, so I predict Pereida will be able to stop deportation proceedings.

This last case Justice Neil Gorsuch said felt like the movie Groundhog Day to him!

The question is: across how many documents can the government communicate to a noncitizen about pending deportation hearings? This seemingly small matter comes before the court often enough to make it seem like Groundhog Day. With deportation at stake, you can be sure lawyers will litigate every jot and tittle.

Here, a man from Guatemala entered the United States illegally 15 years ago. Seven years ago he got a notice to show up in immigration court; two weeks later, he received a second notice with the time and place to show up.

He says the law requires a single document with this information, not two. His rationale? The law in question calls for “a” notice to appear. To his way of thinking, “a” means “one.”

The justices sounded conflicted among themselves. 

Here’s one take.  Listen to this exchange between Chief Justice  Roberts and the man’s lawyer, David Zimmer. You’ll hear the chief use the term “stop time rule.” That’s a policy the government carved out for those it classifies as illegal aliens to use to avoid deportation.

ROBERTS: Would the stop-time rule be triggered if the alien received the two documents in two  different envelopes at the same—on the same day?

ZIMMER: I mean, yes, Your Honor,  certainly, if it’s not in the same document, we—we don’t think it—sorry, I guess “no” is the answer, that if it’s in two different documents, it does not trigger the stop-time rule.

The government allows changes to the date of a hearing, too, as Justice Samuel Alito pointed out. Obviously, you’d need to send out another notice for that.

Justice Gorsuch put it this way: hey, let’s just defer to the agency on this stuff; that’s good enough for government work.

Yet other justices seemed sympathetic to the immigrant’s plea. 

So considering how inefficient the administrative state is along with high stakes to illegal aliens, I’d guess a decision in favor of the immigrant. 

And that’s this week’s Legal Docket.

NICK EICHER, HOST: One more word before we move on. As you know, we’ve kicked off our December Giving Drive. Megan Basham metaphorically threw out the first pitch on Friday. Maybe you heard that.

We just want to emphasize how important your support is to keep this team supplied. We produce a program for you each day of the week that’s 260 programs each year, little over half-an-hour a day. 

We’ve produced some bonus episodes of our longer stories. I hope you heard Sarah Schweinsberg’s excellent half hour this weekend—adding some supplemental reporting on Paradise, California, and how the community responded to the devastating wildfire.

MARY REICHARD, HOST: We added to our lineup The Olasky Interview and a year ago the Effective Compassion podcast. Season two now in the works. Speaking of Legal Docket, we rolled out the Legal Docket podcast right after the Supreme Court term ended. We’ll do that again, with your help this year. 10 episodes, diving deep into the most important cases.

And we do that because that’s what you tell us you want us to do. We hear this over and over again: Just do more. Keep doing more. Lord willing, we’ll keep doing that.

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MARY REICHARD, HOST: Coming up next on The World and Everything in It: The Monday Moneybeat.

NICK EICHER, HOST: We’re talking now with financial analyst and adviser David Bahnsen. David, good morning.

DAVID BAHNSEN, GUEST: Good morning, Nick. Good to be with you.

EICHER: Well, that November jobs report—pretty much in line with expectations. About a quarter of a million jobs added, which maybe sounds impressive, but we’re still digging out of the unprecedented job losses from March and April. We’re just a long way from recovered. 

The unemployment rate ticked down from 6.9 percent to 6.7 and it dropped for a bad reason, namely that fewer people are even looking for jobs. So overall it’s what we expected for November but cause for concern.

What do you draw from it?

BAHNSEN: There wasn’t a ton of surprises in it for me.  

The labor participation force dropping is reinforcement, I think, of the real human damage being done out of this COVID moment and all of the shutdowns. 

Because of course you have all of the people that would like to be working that are not working and that’s reflected in the unemployment number. But the people leaving the labor force, that—as I learned out of the financial crisis—I got to study this quite a bit, wrote a whole chapter on it in my book, Crisis of Responsibility. You get people leaving the workforce, so there’s the economic impact of people not working. But then the human impact follows because the dignity, the usefulness, the productivity, you really want people to find jobs, but before that, you want people who are looking for jobs. And I think that there’s a lot to be concerned about in that data.

EICHER: Yes, labor force participation rate—a way of measuring the number of discouraged workers—and the concern is maybe they might not be back for awhile.

BAHNSEN: Yes. And you can always have people that “leave the workforce” that then come back. And that’s what you were seeing, by the way, for the first three years of the Trump administration. It was a pretty significant increase of people that were in the workforce—both finding work and looking for work.

But, yes, that number has declined in the COVID moment. It was down two-tenths of a percent in the month of November, down to 61.5 percent and that’s something that I really want to keep my eyes on.

EICHER: OK, shifting from the backward-facing analysis of November to the week by week jobs figures you’re also keeping an eye on—that was looking a little better.

BAHNSEN: It was. I have no doubt that we have recovered over half of the jobs now that were lost. I’m going to use round numbers, but something in the range of 21 million people that lost work in that March-April really heavy national lockdown. And I think it’s somewhere in the range of 11 million plus change, so a little over half, that have recovered either those jobs or a different job. 

But I think that the numbers indicate that we’re still sitting at something in the range of nine to 10 million people that have not recovered those jobs and a pretty obvious reflection of some of these lockdowns or constrictions that continue to exist.  

But if we have time, Nick, I will point out something that I’ve learned from Europe over the last month. I’m really, really offended and bothered by what a lot of mayors and governors are doing right now here in America. But it is interesting to me that there’s almost as much gamesmanship going on as there is bad policy. And this is what I mean by the lockdowns in Europe, where France, Germany, UK was a bit more stringent, actually, but when they come and say we’re locking down again and when you hear lockdown, you’re referring to the lockdowns in March-April where factories, businesses, retail, schools. 

Well, now they’re saying we’re locking down again, except for the factories, businesses, stores, and schools. And so certainly some of those are still shut down, but they’re primarily renaming what the definition of a lockdown is. And that’s why I mean you have to watch the data, Nick, because I’m not convinced it’s going to retract as much as some people are expecting.

I’m back here in New York City and I can tell you that they kind of got strict again on certain things, and yet the retail is open. It wasn’t open before. The restaurants are open but at limited capacity. So, I do believe that the policies are damaging and I do believe the economy is nowhere near on a full footing, and yet I don’t believe we’re talking about March-April levels by any stretch of the imagination.

EICHER: Interesting. Why would you say something people don’t want to hear—more lockdown—call it that, but don’t actually lock it down so tightly. Why would you do that?

BAHNSEN: The reason that I believe a significant amount of effort is being put into selling and bragging about or trying to get credit for strictness and some people might even be tempted to call it totalitarianism, is because they’re setting it up for a narrative to say we took it seriously. 

So, there’s an inevitability here of improvement, both pre-vaccine and during vaccine and post-vaccine. The more people who get sick and get better, the less people there are to get sick. This isn’t really a mystery. And I think there’s a narrative being formed to say, hey, there was a period of time where we just weren’t taking this seriously enough, but now some real serious people came in and we got everything better. And it will probably end up being one of the greatest post-hoc fallacies in history.

EICHER: Hmm. Let’s give it a few months and see.

Financial analyst and adviser David Bahnsen, thank you.

BAHNSEN: Thanks for having me, Nick.

NICK EICHER, HOST: Next up on The World and Everything in It: the WORLD History Book.

Today, a brief look at a few notable moments in media history. Here’s WORLD senior correspondent Katie Gaultney.

KATIE GAULTNEY, SENIOR CORRESPONDENT: Ah, the theater. “All the world’s a stage, and all the men and women merely players,” as William Shakespeare wrote in As You Like It. But what about when there were no women on the stage? Dating back to ancient Greece and Rome, young men or boys played female characters. That all changed on December 8, 1660, when an actress first appeared on an English public stage. 

OTHELLO: That handkerchief which I so loved and gave thee, thou gavest to Cassio./ No, by my life and soul! Send for the man, and ask him.

MUSIC: [From the ballet Otello, Act 3, Giuseppe Verdi]

That’s the crucial moment in Shakespeare’s Othello, when the title character kills Desdemona in a fit of jealous rage. And historians believe a production of Othello by the King’s Company at its theater on Vere Street December 8, 1660, featured for the first time a woman in the role of Desdemona—possibly Anne Marshall, but more likely it was Margaret Hughes.

Hughes was a favorite of senior British royal family member Prince Rupert. That provided some cover for Hughes to take the scandalous step of becoming an actress. Prior to Hughes’ debut, theater productions were considered too bawdy for women to participate in. 

The 2002 movie Stage Beauty expanded on what’s known of Hughes’ real-life story. This scene captured the crowd’s exuberance over her performance on Vere Street all those Decembers ago: 

STAGE BEAUTY: Mrs Hughes! … Surely that was the finest night I’ve ever had at the theater. The performances!

With Hughes’ debut, the door opened for women to take to the stage and make The Bard’s romances much more believable. 

MUSIC: [Bert Hirsch Orch Sweetheart Of My Student Days]

From the stage to the small screen: 90 years ago today, experimental broadcast station W1XAV in Boston, Massachusetts, simulcast “The Fox Trappers” radio program to a handful of mechanical television sets. The program included a brief spot promoting I.J. Fox Furriers, making it the first documented commercial in television history. No recordings or transcripts exist of the advertisement, but it’s reimagined here by radio actor Kim Rasmussen:

KIM RASMUSSEN: The Fox Trappers radio program is sponsored by I.J. Fox Furriers, located at the corner of East 4th Street and Euclid Ave. America’s largest manufacturing furrier sells direct to wearers. It makes a difference when you buy from the maker. 

While radio commercials were well accepted, television advertising was prohibited by The Federal Radio Commission at the time. All we know of the commercial is an entry in the FRC records that they reprimanded W1XAV for breaking the regulation. 

Media historians don’t know how many people even saw the commercial that aired during the telecast as so few television sets existed at the time. But they suspect the program didn’t have many viewers at all. 

What they do know, though, is that the first sanctioned commercial aired on television 11 years later in New York. It advertised watchmaker Bulova and lasted only a few seconds:

COMMERCIAL: America runs on Bulova time. 

And thus began the time-tested tradition of folks rushing to change the channel. 

And from TV to radio now… 

MUSIC: [U.S. Army Band, 1942]

The first NFL title game broadcast on national radio aired 80 years ago tomorrow, on December 8, 1940. It also happened to be the most lopsided victory in NFL history. The Chicago Bears mauled the Washington Redskins, winning 73-to-0. 

The Pro Football Hall of Fame notes the scoreboard wasn’t the only evidence of a blowout: 

CLIP: The scoring onslaught was so great that there were no more game balls to be used. The Bears had kicked them into the stands on extra points throughout the afternoon. In fact, Washington pleaded with the Bears not to attempt point-afters on their last two TDs. The game was finished using practice balls. 

Plenty of sports fans bore witness to the bloodbath. The teams faced each other at Griffith Stadium in Washington, D.C., with a sellout capacity attendance of 36,000. The radio broadcast reached 120 stations across the country. 

The Bears had a lot on the line. Redskins owner George Preston Marshall had been taunting the Bears in the press, calling them “quitters” and “cry babies.” But Bears coach George Halas used Marshall’s words to galvanize his team. 

ANNOUNCER: Watch now as Chicago’s George Wilson takes out not one, but two Redskins, and Osmanski completes a 68-yard touchdown! 

At least the loss didn’t cause legendary Redskins quarterback “Slinging” Sammy Baugh to lose his sense of humor. After the game, a reporter asked Baugh if the outcome would have been different if his receiver hadn’t dropped a pass on the first drive. Rumor has it Baugh replied that yes, the outcome would have been different, saying “We would’ve lost 73 to 7.” 

That’s this week’s History Book. I’m Katie Gaultney.

NICK EICHER, HOST: Tomorrow: Elderly Amercans are dying in nursing homes at much higher rates than normal. And it’s not just because of COVID-19. We’ll tell you why.

And, we’ll explain why students at Christian schools in Kentucky are still learning from home.

That and more tomorrow. 

I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard.

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